119 Pages Posted: 18 Feb 2004
The enduring puzzle of duress is to explain why defenses of duress like MPC Section 2.09, which exonerate actors who yield to coercive threats that persons of reasonable firmness in [their] situation would have been unable to resist, should provide broader defenses to victims of manmade, coercive threats than corresponding defenses of necessity provide to victims of natural threats.
Commentators respond to the puzzle in various ways. Conservative commentators argue that the law ought to abandon defenses of duress like MPC Section 2.09 and return to traditional, common-law defenses of duress which, they contend, have the virtue of being coextensive with necessity. Liberal commentators argue that rather than contracting defenses of duress like MPC Section 2.09, the law ought to expand them to encompass not just man-made, coercive threats but also natural threats in the form of situational duress. Despite their differences, conservatives and liberals appear to agree on two things: (1) the discrepancies in scope between defenses of duress like MPC Section 2.09 and corresponding defenses of necessity are morally unwarranted; and (2) to the extent that defenses like MPC Section 2.09 are broader in scope than defenses of necessity, the former are wholly or partly excuses, not justifications.
We believe that commentators are mistaken in all of the foregoing respects. Common-law defenses of duress are not coextensive with defenses of necessity, but rather are considerably broader in scope than necessity. The discrepancies in scope between defenses of duress like MPC Section 2.09 and corresponding defenses of necessity are not morally unjustified, but rather are firmly grounded in practical reason. To the extent that defenses of duress like MPC Section 2.09 are broader in scope than corresponding defenses of necessity, the former are not excuses, but rather are justifications. And, finally, defenses of duress like MPC Section 2.09 ought not to be expanded to encompass situational duress. If they were thus expanded, they would constitute excuses, and, indeed, excuses of an unprecedented kind, because they would thereby subvert the pervasive principle that a person who knows what society demands of him, and who is capable of complying with its demands, ought to do so, hard as it may be for him to resist the temptation not to comply.
We also believe that the foregoing mistakes are all products of a common underlying misconception - a misconception concerning the metric by which evils are weighed for purposes of defenses of justification. Defenses of justification are choice-of-evils defenses and, hence, presuppose a metric for assessing and comparing evils. Contrary to what commentators assume, however, the metric by which evils are assessed is not a procrustean one that produces a single ranking that is applicable in all contexts. The metric for assessing evils for purposes of choice-of-evils defenses is a contextualized or moralized metric that takes account of the nature of parties involved, the normative relationships among them, and the causal manner in which the alternatives evils may come about. Accordingly, an evil that is greater than another evil in a certain context may be equal to or lesser than the same evil in another context. This context-sensitive metric is relevant to duress because the features that distinguish duress from necessity - namely, that the pressures of duress are manmade and coercive - are also features that ultimately affect whether given evils are greater than, lesser than, or equal to one another for choice-of-evil purposes.
JEL Classification: K19
Suggested Citation: Suggested Citation
Westen, Peter K. and Mangiafico, James, The Criminal Defense of Duress: A Justification, Not an Excuse - And Why It Matters. Buffalo Criminal Law Review, Vol. 6, p. 833, 2003. Available at SSRN: https://ssrn.com/abstract=503462